[Federal Register Volume 83, Number 16 (Wednesday, January 24, 2018)]
[Proposed Rules]
[Pages 3291-3294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01182]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 171023999-8015-01]
RIN 0648-BH31


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2018 Tribal Fishery for Pacific 
Whiting

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this proposed rule for the 2018 Pacific whiting 
fishery under the authority of the Pacific Coast Groundfish Fishery 
Management Plan (FMP), the Magnuson Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 
2006. This proposed rule would allocate 17.5 percent of the U.S. Total 
Allowable Catch (TAC) of Pacific whiting for 2018 to Pacific Coast 
Indian tribes that have a Treaty right to harvest groundfish.

DATES: Comments on this proposed rule must be received no later than 
February 23, 2018.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2017-0160, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0160, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Barry A. Thom., Regional Administrator, West Coast 
Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: 
Frank Lockhart.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Additional background information and documents are available at 
the NMFS West Coast Region website at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's 
website at http://www.pcouncil.org/. Comments from the public may be 
viewed on Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Frank Lockhart, phone: 206-526-6142, 
and email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The regulations at 50 CFR 660.50(d) outline the procedures for 
implementing the treaty rights that Pacific Coast treaty Indian tribes 
have to harvest groundfish in their usual and accustomed fishing areas 
in U.S. waters. Section 660.50(d) establishes the process by which the 
tribes with treaty fishing rights in the area covered by the FMP 
request allocations, set-asides, or regulations specific to the tribes, 
in writing, during the biennial harvest specifications and management 
measures process. The regulations state that the Secretary will develop 
tribal allocations and regulations in consultation with the affected 
tribe(s) and, insofar as possible, with tribal consensus. The 
procedures NMFS employs in implementing tribal treaty rights under the 
FMP were designed to provide a framework process by which NMFS can 
accommodate tribal treaty rights by setting aside appropriate amounts 
of fish in conjunction with the Pacific Fishery Management Council 
process for determining harvest specifications and management measures.
    Since the FMP has been in place, NMFS has been allocating a portion 
of the U.S. TAC (called Optimum Yield (OY) or Annual Catch Limit (ACL) 
prior to 2012) of Pacific whiting to the tribal fishery, following the 
process established in 50 CFR 660.50(d). The tribal allocation is 
subtracted from the U.S. Pacific whiting TAC before allocation to the 
non-tribal sectors.
    There are four tribes that can participate in the tribal Pacific 
whiting fishery: The Hoh Tribe, the Makah Tribe, the Quileute Tribe and 
the Quinault Indian Nation (collectively, the ``Treaty Tribes''). The 
Hoh Tribe has not expressed an interest in participating to date. The 
Quileute Tribe and Quinault Indian Nation have expressed interest in 
commencing participation in the Pacific whiting fishery. However, to 
date, only the Makah Tribe has prosecuted a tribal fishery for Pacific 
whiting. They have harvested Pacific whiting since 1996 using midwater 
trawl gear. Tribal allocations have been based on discussions with the 
Tribes regarding their intent for those fishing years. Table 1 below 
provides a history of U.S. TACs and annual tribal allocation in metric 
tons (mt).

[[Page 3292]]



   Table 1--U.S. Total Allowable Catch and Annual Tribal Allocation in
                            Metric Tons (mt)
------------------------------------------------------------------------
              Year                   U.S. TAC \1\      Tribal allocation
------------------------------------------------------------------------
2007............................  242,591 mt........  35,000 mt.
2008............................  269,545 mt........  35,000 mt.
2009............................  135,939 mt........  50,000 mt.
2010............................  193,935 mt........  49,939 mt.
2011............................  290,903 mt........  66,908 mt.
2012............................  186,037 mt........  48,556 mt.
2013............................  269,745 mt........  63,205 mt.
2014............................  316,206 mt........  55,336 mt.
2015............................  325,072 mt........  56,888 mt.
2016............................  367,553 mt........  64,322 mt.
2017............................  441,433 mt........  77,251 mt.
------------------------------------------------------------------------
\1\ Beginning in 2012, the United States started using the term Total
  Allowable Catch, or TAC, based on the Agreement between the Government
  of the United States of America and the Government of Canada on
  Pacific Hake/Whiting. Prior to 2012, the terms Optimal Yield (OY) and
  Annual Catch Limit (ACL) were used.

    In 2009, NMFS, the states of Washington and Oregon, and the Treaty 
Tribes started a process to determine the long-term tribal allocation 
for Pacific whiting; however, no long-term allocation has been 
determined. In order to ensure Treaty Tribes continue to receive 
allocations, this rule proposes the 2018 tribal allocation of Pacific 
whiting. This allocation is not intended to set precedent for 
allocations in future years.

Tribal Allocation for 2018

    In exchanges between NMFS and the Treaty Tribes during 2017, the 
Makah Tribe indicated their intent to participate in the tribal Pacific 
whiting fishery in 2018, and requested 17.5 percent of the U.S. TAC. 
The Quinault Indian Nation informed the Region that they will not 
participate in the 2018 fishery. Quileute Indian Tribe has not 
responded to inquiries about their whiting fishing intent for 2018, and 
has not pursued a whiting fishery to date. The Hoh Indian Tribe has in 
previous years indicated in conversation with Frank Lockhart, 
Groundfish & Coastal Pelagic Species Senior Policy Advisor at NMFS, 
that they have no plans to fish for whiting in the foreseeable future 
and will contact NMFS if that changes. NMFS will again contact the 
tribes during the proposed rule comment period to refine, if necessary, 
the 2017 allocation before a final decision is made. NMFS proposes a 
tribal allocation that accommodates the Makah request, specifically 
17.5 percent of the U.S. TAC. NMFS believes that the current scientific 
information regarding the distribution and abundance of the coastal 
Pacific whiting stock suggests that the 17.5 percent is within the 
range of the tribal treaty right to Pacific whiting.
    The Joint Management Committee, which was established pursuant to 
the Agreement between the United States and Canada on Pacific Hake/
Whiting (the Agreement), is anticipated to recommend the coastwide and 
corresponding U.S./Canada TACs no later than March 25, 2018. The U.S. 
TAC is 73.88 percent of the coastwide TAC. Until this TAC is set, NMFS 
cannot propose a specific amount for the tribal allocation. The Pacific 
whiting fishery typically begins in May, and the final rule 
establishing the Pacific whiting specifications for 2018 is anticipated 
to be published by early May. Therefore, in order to provide for public 
input on the tribal allocation, NMFS is issuing this proposed rule 
without the final 2018 TAC. However, to provide a basis for public 
input, NMFS is describing a range of potential tribal allocations in 
this proposed rule, applying the proposed approach to determining the 
tribal allocation to a range of potential TACs derived from past 
harvest levels.
    In order to project a range of potential tribal allocations for 
2018, NMFS is applying its proposed approach to determining the tribal 
allocation to the range of U.S. TACs over the last 10 years, 2008 
through 2017 (plus or minus 25 percent to capture variability in stock 
abundance). The range of U.S. TACs in that time period was 135,939 mt 
(2009) to 441,433 mt (2017). Applying the 25 percent variability 
results in a range of potential TACs of 101,954 mt to 551,791 mt for 
2018. Therefore, using the proposed allocation rate of 17.5 percent, 
the potential range of the tribal allocation for 2018 would between 
17,842 and 96,563 mt.
    This proposed rule would be implemented under authority of section 
305(d) of the Magnuson-Stevens Act, which gives the Secretary 
responsibility to ``carry out any fishery management plan or amendment 
approved or prepared by him, in accordance with the provisions of this 
Act.'' With this proposed rule, NMFS, acting on behalf of the 
Secretary, would ensure that the FMP is implemented in a manner 
consistent with treaty rights of four Treaty Tribes to fish in their 
``usual and accustomed grounds and stations'' in common with non-tribal 
citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).

Classification

    NMFS has preliminarily determined that the management measures for 
the 2018 Pacific whiting tribal fishery are consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. In making the final determination, NMFS will take into account 
the data, views, and comments received during the comment period.
    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866. 
This proposed rule is not expected to be an Executive Order 13771 
regulatory action because this proposed rule is not significant under 
Executive Order 12866.
    As required by section 603 of the Regulatory Flexibility Act (RFA), 
an Initial Regulatory Flexibility Analysis (IRFA) was prepared. The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A summary of the analysis follows. A copy 
of this analysis is available from NMFS.
    Under the RFA, the term ``small entities'' includes small 
businesses, small organizations, and small governmental jurisdictions. 
A small organization is any nonprofit enterprise that is independently 
owned and operated and is not dominant in its field. Small governmental 
jurisdictions such as governments of cities, counties, towns, 
townships, villages, school districts, or special districts are 
considered small jurisdictions if their populations are less than 
50,000. The Small Business Administration has established size criteria 
for entities involved in the fishing industry that qualify as small 
businesses. A business involved in fish harvesting is a small business 
if it is independently owned and operated and not dominant in its field 
of operation (including its affiliates) and if it has combined annual 
receipts, not in excess of $11 million for all its affiliated 
operations worldwide (see 80 FR 81194, December 29, 2015). A wholesale 
business servicing the fishing industry is a small business if it 
employs 100 or fewer persons on a full time, part time, temporary, or 
other basis, at all its affiliated operations worldwide. A seafood 
processor is a small business if it is independently owned and 
operated, not dominant in its field of operation, and employs 750 or 
fewer persons on a full time, part time, temporary, or other basis, at 
all its affiliated operations worldwide. For purposes of rulemaking, 
NMFS is also applying the seafood processor standard to catcher 
processors because Pacific whiting Catcher-Processors (C/Ps) earn the 
majority of the revenue from processed seafood product.
    This proposed rule would affect how Pacific whiting is allocated to 
the following sectors/programs: Tribal,

[[Page 3293]]

Shorebased Individual Fishing Quota (IFQ) Program Trawl Fishery, 
Mothership (MS) Coop Program--Whiting At-sea Trawl Fishery, and C/P 
Coop Program--Whiting At-sea Trawl Fishery. The amount of Pacific 
whiting allocated to these sectors is based on the U.S. TAC.
    Currently, the Shorebased IFQ Program is composed of 180 Quota 
Share permits/accounts, 154 vessel accounts, and 47 first receivers, 
only a portion of which participate in the Pacific whiting fishery, 
listed below. These regulations also directly affect participants in 
the MS Coop Program, a general term to describe the limited access 
program that applies to eligible harvesters and processors in the MS 
sector of the Pacific whiting at-sea trawl fishery. This program 
currently consists of six MS processor permits, and a catcher vessel 
fleet currently composed of a single coop, with 34 Mothership/Catcher 
Vessel (MS/CV) endorsed permits (with three permits each having two 
catch history assignments). These regulations also directly affect the 
C/P Coop Program, composed of 10 C/P endorsed permits owned by three 
companies that have formed a single coop. These co-ops are considered 
large entities from several perspectives; they have participants that 
are large entities, and have in total more than 750 employees worldwide 
including affiliates. Although there are three non-tribal sectors, many 
companies participate in two sectors and some participate in all three 
sectors. As part of the permit application processes for the non-tribal 
fisheries, based on a review of the Small Business Administration size 
criteria, permit applicants are asked if they considered themselves a 
``small'' business, and they are asked to provide detailed ownership 
information. After accounting for cross participation, multiple QS 
account holders, and affiliation through ownership, NMFS estimates that 
there are 103 non-tribal entities directly affected by these proposed 
regulations, 89 of which are considered ``small'' businesses. We also 
expect one tribal entity to fish in 2018. Tribes are not considered 
small entities for the purposes of RFA.
    This rule will allocate fish between tribal and non-tribal 
harvesters (a mixture of small and large businesses). Tribal fisheries 
consist of a mixture of fishing activities that are similar to the 
activities that non-tribal fisheries undertake. Tribal harvests are 
delivered to both shoreside plants and motherships for processing. 
These processing facilities also process fish harvested by non-tribal 
fisheries. The effect of the tribal allocation on non-tribal fisheries 
will depend on the level of tribal harvests relative to their 
allocation and the reapportionment process. If the tribes do not 
harvest their entire allocation, there are opportunities during the 
year to reapportion unharvested tribal amounts to the non-tribal 
fleets. For example, in 2017 NMFS reapportioned 41,000 mt of the 
original 77,251 mt tribal allocation. This reapportionment was based on 
conversations with the tribes and the best information available at the 
time, which indicated that this amount would not limit tribal harvest 
opportunities for the remainder of the year. In 2017, the tribal 
Pacific whiting catch was approximately 6,000 mt in a fishery that 
spanned early August to December and delivered to a shoreside 
processing plant. This reapportioning process allows unharvested tribal 
allocations of Pacific whiting to be fished by the non-tribal fleets, 
benefitting both large and small entities. The revised Pacific whiting 
allocations for 2017 following the reapportionment were: Tribal 36,251 
mt, C/P Coop 137,252 mt; MS Coop 96,884 mt; and Shorebased IFQ Program 
169,547 mt.
    The prices for Pacific whiting are largely determined by the world 
market because most of the Pacific whiting harvested in the U.S. is 
exported. The U.S. Pacific whiting TAC is highly variable, as have 
subsequent harvests and ex-vessel revenues. For the years 2011 to 2016, 
the total Pacific whiting fishery (tribal and non-tribal) averaged 
harvests of approximately 292,000 mt annually. As of October 23, 2017, 
the U.S. fishery had an unprecedentedly high catch of almost 320,000 mt 
from the all-time high TAC of 441,433 mt.
    In 2015, the MS whiting fleet had $6.8 million in revenue, 
generated $19.1 million in income, and supported 461 jobs on the West 
Coast. The C/P fleet generated $7.1 million in revenue, driving $88.8 
million in income and supporting 1,670 jobs. However, in 2015, bycatch 
constraints, anomalous ocean conditions, and a Russian import ban 
contributed to atypically low harvests and revenues and a historic low 
attainment of a high TAC. With similarly high (and increasing) TACs, 
attainment remained at average levels in 2014, 2016, and 2017. Thus, 
economic results from the 2015 season, the last year for which detailed 
economic data are available, are not a reasonable forecast of the 2018 
season.
    Until 2016 economic data are available, this makes the 2014 season 
the last representative year for which detailed economic information is 
available. In 2014, the MS fleet had $46.4 million in wholesale 
revenue, and generated $42 million in income and supported 926 jobs on 
the west coast from Pacific whiting (2014 Economic Data Collection 
(EDC) Mothership Report). The C/P fleet, which had $99.2 million in 
wholesale revenue in 2014, generated $142 million in income and 
supported 1,895 jobs on the west coast from Pacific whiting (2014 
Economic Data Collection (EDC) C/P Report). In 2014, eight shoreside 
Pacific whiting companies processed 61,000 mt of Pacific whiting, for a 
wholesale revenue of $71 million. The number of companies processing 
shoreside did not change in 2015.
    Impacts to Makah catcher vessels who elect to participate in the 
tribal fishery are measured with an estimate of ex-vessel revenue. In 
lieu of more complete information on tribal deliveries, total ex-vessel 
revenue is estimated with the 2016 average IFQ ex-vessel price of 
Pacific whiting, which was $165 per mt. At that price, the proposed 
2018 Tribal allocation (potentially 17,842-96,563 mt) would have an ex-
vessel value between $2.9 million and $15.9 million.
    NMFS considered two alternatives for this action: The ``No-Action'' 
and the ``Proposed Action.'' NMFS did not consider a broader range of 
alternatives to the proposed allocation because the tribal allocation 
is based primarily on the requests of the tribes, and these requests 
reflect the level of participation in the fishery that will allow them 
to exercise their treaty right to fish for Pacific whiting. 
Consideration of a percentage lower than the tribal request of 17.5 
percent is not appropriate in this instance. As a matter of policy, 
NMFS has historically supported the harvest levels requested by the 
tribes. Based on the information available to NMFS, the tribal request 
is within their tribal treaty rights. A higher percentage would 
arguably also be within the scope of the treaty right. However, a 
higher percentage would unnecessarily limit the non-tribal fishery.
    Under the Proposed Action alternative, NMFS proposes to set the 
tribal allocation percentage at 17.5 percent, as requested by the 
tribes. This would yield a tribal allocation of between 17,842 and 
96,563 mt for 2018.
    Under the no-action alternative, NMFS would not make an allocation 
to the tribal sector. This alternative was considered, but the 
regulatory framework provides for a tribal allocation on an annual 
basis only. Therefore, the no-action alternative would result in no 
allocation of Pacific whiting to the tribal sector in 2018, which would 
be inconsistent with NMFS' responsibility to manage the

[[Page 3294]]

fishery consistent with the tribes' treaty rights. Given that there is 
a tribal request for allocation in 2018, this alternative received no 
further consideration.
    NMFS believes this proposed rule would not adversely affect small 
entities. The reapportioning process allows unharvested tribal 
allocations of Pacific whiting, fished by small entities, to be fished 
by the non-tribal fleets, benefitting both large and small entities. 
NMFS has prepared an IRFA and is requesting comments on this 
conclusion. See ADDRESSES.
    There are no reporting, recordkeeping or other compliance 
requirements in the proposed rule.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the FMP. Consistent with the Magnuson-Stevens 
Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific 
Council is a representative of an Indian tribe with federally 
recognized fishing rights from the area of the Council's jurisdiction. 
In addition, NMFS has coordinated specifically with the tribes 
interested in the Pacific whiting fishery regarding the issues 
addressed by this rule.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: January 18, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq., 
and 16 U.S.C. 7001 et seq.

0
2. In Sec.  660.50, revise paragraph (f)(4) to read as follows:


Sec.  660.50   Pacific Coast treaty Indian fisheries.

* * * * *
    (f) * * *
    (4) Pacific whiting. The tribal allocation for 2018 will be 17.5 
percent of the U.S. TAC.
* * * * *
[FR Doc. 2018-01182 Filed 1-23-18; 8:45 am]
 BILLING CODE 3510-22-P